……Complainants
V e r s u s
Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh-160017, through its Managing Director.
.... Opposite Party
Complaint under Section 17 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER
Argued by: Sh.Manish Jain, Advocate for the complainants.
Sh.Sanjeev Sharma, Advocate for the Opposite Party.
JUSTICE SHAM SUNDER (RETD.), PRESIDENT
The facts, in brief, are that the complainants booked a bungalow, approximately measuring 300 square yards, in the project of the Opposite Party, under the name of style of “The Bungalows”, Sector 109, Mohali, vide application dated 19.11.2009. It was stated that alongwith the said application, an amount of Rs.5 lacs, as booking amount was also paid by the complainants, towards the said unit. It was further stated that the complainants were allotted Bungalow No.540, Sector 109, Augusta Park, Mohali Hills, Mohali, Punjab (hereafter to be referred as Bungalow No.TBM-300-AP-540), vide provisional allotment letter dated 30.11.2009 Annexure C-3.
- It was further stated that the Buyer's Agreement dated 11.01.2010 Annexure C-7, in respect of Bungalow No.TBM-300-AP-540, was executed between the parties, at Chandigarh. The total sale consideration of Bungalow No.TBM-300-AP-540 was to the tune of Rs.71,73,300/- i.e. Rs.66 lacs towards basic price, Rs.5,43,300/- towards External Development Charges (EDC) and Rs.30,000/- towards Interest Free Maintenance Security. It was further stated that, as per Clause 8 of the Buyer's Agreement dated 11.01.2010 Annexure C-7, the Opposite Party was liable to deliver the possession of Bungalow No.TBM-300-AP-540, to the complainants, within a maximum period of 24 months, from the date of execution of the same (Agreement), failing which it was liable to pay penalty @Rs.100/- per sq. yd, per month, for the period of delay. Thus, the Opposite Party was required to deliver the possession of Bungalow No.TBM-300-AP-540, to the complainants, on or before 10.01.2012.
- It was further stated that the complainants availed of loan, from the Housing Development Finance Corporation (HDFC) Limited, for payment of installments, in respect of Bungalow No.TBM-300-AP-540. It was further stated that, as per the demands made by the Opposite Party, by 12.12.2011, the complainants paid the total amount of Rs.66,83,185/-, towards part price of Bungalow No.TBM-300-AP-540 but, on the other hand, there was no progress in construction and development at the site. It was further stated that even the basic amenities were not provided at the site. It was further stated that, however, by the stipulated date i.e. 10.01.2012, the possession of Bungalow No.TBM-300-AP-540 was not even offered to the complainants, what to speak of delivery thereof. It was further stated that, thereafter, as and when the complainants approached the site and Office of the Opposite Party, with a request to give exact date of completion of development work and delivery of possession of Bungalow No.TBM-300-AP-540, it put off the matter, on one pretext or the other.
- It was further stated that even necessary approvals/permissions/sanctions had not been obtained by the Opposite Party, from the Competent Authorities. It was further stated that the complainants approached the Opposite Party, a number of times, as also sent emails, with a request to deliver the possession of Bungalow No.TBM-300-AP-540, to them, but to no avail. It was further stated that, on account of non-delivery of possession of Bungalow No.TBM-300-AP-540, the complainants had been forced to continue residing in a rented accommodation, for which they had been paying hefty rent, in the sum of Rs.14,500/- per month, thereby causing unnecessary financial loss to them.
- It was further stated that the Opposite Party collected the huge amount, towards part price of Bungalow No.TBM-300-AP-540, by making a false promise, that possession of the same would be given to the complainants, within a maximum period of 24 months, from the date of signing the Buyer's Agreement dated 11.01.2010 Annexure C-7, but it did not abide by its commitment. Ultimately, the complainants asked for refund of the amount deposited, but to no avail.
- It was further stated that the aforesaid acts, on the part of the Opposite Party, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to refund the amount of Rs.66,83,185/-, alongwith interest @ 24% P.A., from the respective dates of deposits till realization; pay the EMI amount, already paid by them, to the HDFC Limited; compensation in the sum of Rs.10 lacs, for deficiency in rendering service, mental agony and physical harassment; and cost of litigation to the tune of Rs.1,10,000/-
- The Opposite Party was served, and put in appearance, on 27.04.2015 and filed its written version, on 09.06.2015. In its written version, the Opposite Party, pleaded that the complainants did not fall within the definition of consumers, as defined under Section 2 (1) (d) of the Act, as they had purchased Bungalow No.TBM-300-AP-540, with an intention to earn profits, after selling the same, as and when there was escalation in the prices of real estate. It was further pleaded that cause of action accrued, in favour of the complainants, on 10.01.2012, when they were to be offered possession of Bungalow No.TBM-300-AP-540, and, as such, they could file the complaint, within 2 years, from that date (10.01.2012). It was further pleaded that the complaint having been filed on 20.03.2015, was palpably barred by time. It was further pleaded that this Commission had got no territorial and pecuniary Jurisdiction, to entertain and decide the complaint. It was further pleaded that since an arbitration Clause was incorporated, in the Buyer's Agreement dated 11.01.2010 Annexure C-7, disputes, if any, between the parties, in respect of Bungalow No.TBM-300-AP-540, could only be adjudicated upon, by the Arbitrator. It was further pleaded that since the complainants sought enforcement of the Buyer's Agreement dated 11.01.2010, Annexure C-7, in respect of the immovable property, only a suit for specific performance was maintainable. It was further pleaded that the complaint was bad for non-joinder of the HDFC Limited, as a necessary party, from which the complainants had obtained loan, in respect of the payment of instalments towards the price of Bungalow No.TBM-300-AP-540. It was further pleaded that time was never made the essence of contract. The factum of allotment of Bungalow No.TBM-300-AP-540, in favour of the complainants, was admitted. It was also admitted that the total sale consideration of Bungalow No.TBM-300-AP-540 was to the tune of Rs.71,73,300/- as mentioned in the complaint. It was stated that the Opposite Party had received Rs.17,33,185/-, from the complainants, whereas Rs.48,56,110/-, from the HDFC Limited. It was further stated that since the complainants had opted for subvention interest scheme, the Opposite Party had deposited the amount of Rs.2,27,952/-, as pre-EMI interest, with the HDFC Limited, from which they had availed of loan, as also an amount of Rs.93,890/- had been credited to their (complainants) account. Execution of the Buyer's Agreement dated 11.01.2010 Annexure C-7, between the parties, in respect of Bungalow No.TBM-300-AP-540, was also admitted. It was also admitted that as per the Buyer's Agreement dated 11.01.2010 Annexure C-7, the possession of Bungalow No.TBM-300-AP-540, complete in all respects, was required be handed over to the complainants, within a maximum period of 24 months, from the date of execution thereof. It was also admitted that the possession of Bungalow No.TBM-300-AP-540, could not be delivered, to the complainants, till the date of filing the consumer complaint. It was further stated that possession of Bungalow No.TBM-300-AP-540, could not be delivered to the complainants, for want of construction and basic amenities, at the site. It was further stated that it was well within the knowledge of the complainants that for any delays, stipulated penalty had been provided in the Buyer's Agreement dated 11.01.2010 Annexure C-7, which safeguarded their rights. It was further stated that, in case, the complainants sought refund of the amount, deposited by them, towards Bungalow No.TBM-300-AP-540, they would lose considerable amount, on account of cancellation and forfeiture, as per Clause 2 (f) of the Buyer's Agreement dated 11.01.2010 Annexure C-7. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
- In the rejoinder filed by the complainants, they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Party.
- The complainants submitted their joint affidavit, in support of the averments, contained in the complaint, by way of evidence, alongwith which, a number of documents were attached.
- The Opposite Party, in support of its case, submitted the affidavit of Mr.Sachin Kapoor, its Senior Manager (Legal), by way of evidence, alongwith which, a number of documents were attached.
- We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
- The first question, that arises for consideration, is, as to whether, the complainants fall within the definition of consumers, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here, that the mere objection of the Opposite Party, that the complainants being speculators, purchased the bungalow, in question, by way of investment, to gain huge profits, by selling the same, as and when there was escalation in prices, does not carry any weight and is liable to be rejected. It was clearly averred, by the complainants, in paragraph no.21 of the complaint, supported by their joint affidavit, by way of evidence, that in the absence of delivery of possession they had to stay in the rented accommodation, and, on the other hand, had they been delivered the same (possession), they would have resided therein. Even otherwise, the mere fact that a residential bungalow, was booked by the complainants, could be said to be sufficient to prove that it was to be used for the purpose of residence, by them. There is nothing, on the record, that the complainants are property dealers, and deal in the sale and purchase of property. No reliable evidence was also produced, by the Opposite Party, to prove that the complainants owned a number of other residential properties, in the tricity, and, as such, the bungalow, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. The complainants, thus, availed of the services of the Opposite Party, for the allotment of a residential bungalow, in question, with a view to reside in the same. The complainants, thus, fall within the definition of consumers, as defined by Section 2(1)(d)(ii) of the Act. Such an objection, taken by the Opposite Party, in its written statement, therefore, being devoid of merit, is rejected.
- The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not. It may be stated here, that the Buyer's Agreement dated 11.01.2010, Annexure C-7, in respect of bungalow No.TBM-300-AP-540, was executed between the parties, possession whereof was to be delivered by 10.01.2012. Possession was not offered to the complainants, by 10.01.2012, or till date, for want of construction and basic amenities, at the site. Since, the possession of bungalow No.TBM-300-AP-540, was neither offered to the complainants, by the stipulated date i.e. 10.01.2012, nor till date, nor the amount deposited by them, was refunded, as such, there was a continuing cause of action. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), the complainant applied for a plot, in the year 1992, on the basis of inducement, made in the advertisements of the petitioner, knowing fully well, that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon'ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The submission of the Counsel for the Opposite Party, in this regard, being devoid of merit, must fail, and the same stands rejected.
- The next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act, a consumer complaint could be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, the Buyer's Agreement dated 11.01.2010, Annexure C-7, in respect of bungalow No.TBM-300-AP-540 was executed, between the parties, at Chandigarh, as is evident from page 25 of the file. It means that a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission. This Commission has, therefore, got territorial Jurisdiction, to entertain and decide the complaint. The objection taken by the Opposite Party in its written version, that this Commission has no territorial Jurisdiction, to entertain and decide the complaint, therefore, being devoid of merit, must fail, and the same stands rejected.
- The next question, that falls for consideration, is, as to whether, this Commission has got the pecuniary Jurisdiction, to entertain and decide the complaint or not. It may be stated here, that the total sale consideration of bungalow No.TBM-300-AP-540 was Rs.71,73,300/-. The complainants have sought refund of the amount of Rs.66,83,185/-, stated to have been paid by them, in the manner, referred to above, towards part price of the bungalow No.TBM-300-AP-540 alongwith interest @24% P.A., from the respective dates of deposits, till realization; EMI amount, which had been paid by them, to the HDFC Limited; compensation to the tune of Rs.10 lacs, for deficiency in rendering service, mental agony and physical harassment; and cost of litigation, to the tune of Rs.1,10,000/-. The amount of EMI paid by the complainants to the HDFC Limited, and claimed by them formed part and parcel of the amount of refund claimed and not over and above the same. Thus, the aggregate value of the services/goods or refund sought, EMI, compensation and cost claimed by the complainants, in the complaint, [excluding the interest claimed @24% P.A. on Rs.66,83,185/-], came to be around Rs.83,07,147/- and, as such, fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection, taken by the Opposite Party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
- The next question, that arises for consideration, is, as to whether, interest @24% P.A., claimed by the complainants, in the manner, referred to above, was required to be added, to the value of the reliefs claimed, or not, for determining the pecuniary Jurisdiction of this Commission. In Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, the facts were that the complainant filed a consumer complaint, before the State Consumer Disputes Redressal Commission, Haryana, claiming an amount of Rs.18,33,000/-, with interest @18% per annum, on this amount, from the date of claim, till realization. It also claimed suitable damages, on account of loss caused to it. The State Consumer Disputes Redressal Commission, vide order dated 08.08.2002, disposed of the complaint, with liberty reserved to the complainant, to approach the National Consumer Disputes Redressal Commission, holding that if interest @18% P.A. was allowed, on the amount of Rs.18,33,000/-, it (amount) will exceed Rs.20 lakhs (at that time the pecuniary Jurisdiction of the State Consumer Disputes Redressal Commission was upto Rs.20 lacs), for which it had no pecuniary Jurisdiction. Feeling aggrieved, the complainant/appellant filed the aforesaid appeal. The National Consumer Disputes Redressal Commission, in the aforesaid appeal, held as under:-
“Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.
Accordingly, while accepting appeal, the order dated 8.8.2002 is set aside. On complaint being returned by the State Commission, the appellant is permitted to file it before the appropriate District Forum for being decided on merits in accordance with law. No order as to costs”.
- The observations made, in the aforesaid case, are fully applicable, to the facts of the instant case. In the instant complaint, interest @24% P.A., claimed by the complainants, in the manner, referred to above, was not required to be added, for determining the pecuniary Jurisdiction of this Commission. The question, thus, stands answered, in the manner, referred to above.
- The next question, that falls for consideration, is, as to whether, the consumer complaint, under Section 17 of the Act, was not maintainable, before this Commission, on account of the reason, that an arbitration Clause existed, in the Buyer's Agreement dated 11.01.2010, Annexure C-7. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection Act, 1986, is required to be made, which reads as under;
“3.Act not in derogation of any other law.—
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”
- Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of arbitration Clause, in the Buyer's Agreement dated 11.01.2010, Annexure C-7, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act. Similar principle of law, was laid down, in Fair Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I. Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). In this view of the matter, the submission of the Counsel for the Opposite Party, being devoid of merit, must fail, and the same stands rejected.
- It was submitted by the Counsel for the Opposite Party, that since the complainants sought enforcement of the Buyer's Agreement dated 11.01.2010, Annexure C-7, in respect of the immoveable property, as such, the consumer complaint was not maintainable. The submission of the Counsel for the Opposite Party, in this regard, also does not appear to be correct. It may be stated here, that the complainants hired the services of the Opposite Party, for purchasing bungalow No.TBM-300-AP-540, and they were allotted the same, for consideration. According to Clause 8 of the Buyer's Agreement dated 11.01.2010, Annexure C-7, subject to force majeure conditions and reasons, beyond the control of the Opposite Party, it was to deliver physical possession of bungalow No.TBM-300-AP-540, complete in all respects, within a period of 24 months, from the date of execution of the same (Agreement). According to Clause 23 of the Buyer's Agreement dated 11.01.2010, Annexure C-7, the Opposite Party was responsible to provide internal services, within the Project, which interalia included laying of the roads, water lines, sewer lines, electric lines etc. etc. It was not that the complainants purchased the unit, in an open auction, on “as is where is basis”, without any further promise of the Opposite Party, of completing the construction thereof and providing amenities/facilities, and developing the area, where the same (unit), in question, is situated. Section 2 (1) (o) of the Act, defines service as under:-
“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”
- From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have a remedy to file a suit, for specific performance, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by them, as they fell within the definition of consumers, as stated above. In this view of the matter, the submission of the Counsel for the Opposite Party, being devoid of merit, must fail, and the same stands rejected.
- The next question, that falls for consideration, is, as to whether, time was the essence of contract or not. It may be stated here that, in the instant case, as stated above, as per Clause 8 of the Buyer's Agreement dated 11.01.2010, Annexure C-7, the Opposite Party was to hand over physical possession of bungalow No.TBM-300-AP-540, in favour of the complainants, within a period of 24 months, from the date of execution of the same (Buyer's Agreement). It was further mentioned in Clause 8 of the Buyer's Agreement dated 11.01.2010, Annexure C-7, that, in case, the Opposite Party, failed to deliver possession of bungalow No.TBM-300-AP-540, within the stipulated period, it was liable to pay penalty/compensation, to the complainants, @ Rs.100/- per square yard, per month, for the period of delay. Thus, the Opposite Party was to deliver possession of bungalow No.TBM-300-AP-540 to the complainants, latest by 10.01.2012. Even, after the expiry of more than about 3½ years, from the stipulated date, the possession of bungalow No.TBM-300-AP-540, was not delivered to the complainants. The time was, thus, unequivocally made the essence of contract. The submission of the Counsel for the Opposite Party, thus, being devoid of merit, must fail, and the same stands rejected.
- No doubt, the Counsel for the Opposite Party, placed reliance on Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., AIR 1993 SC 1742, a case decided by the Hon’ble Supreme Court to contend that time was not the essence of contract. The facts of Smt. Chand Rani's case (supra), are distinguishable, from the facts of the instant case. Smt. Chand Rani's case (supra), related to the specific performance of contract. It was held that intention to make time, as the essence of contract, must be expressed in unequivocal terms, in the Agreement. It was, under these circumstances, held, in the said case that time was not the essence of contract. Whereas, in the instant case, as per Clause 8 of the Buyer's Agreement dated 11.01.2010, Annexure C-7, the Opposite Party was to hand over physical possession of bungalow No.TBM-300-AP-540, within a period of 24 months, from the date of execution of the same, i.e. latest by 10.01.2012. Even after the expiry of more than about 3½ years, the possession of bungalow No.TBM-300-AP-540, was not delivered to the complainants. The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid case, can be drawn, by the Counsel for the Opposite Party. The submission of the Counsel for the Opposite Party, thus, being devoid of merit, must fail, and the same stands rejected.
- The next question, that falls for consideration, is, as to within which period, the delivery of possession of bungalow No.TBM-300-AP-540 was to be given to the complainants. As stated above, according to Clause 8 of the Buyer's Agreement dated 11.01.2010, Annexure C-7, the Opposite Party was to hand over physical possession of bungalow No.TBM-300-AP-540, in favour of the complainants, within a period of 24 months, from the date of execution of the same (Buyer's Agreement), failing which, it (Opposite Party), was liable to pay penalty/compensation, to the complainants, @ Rs.100/- per square yard, per month, for the period of delay . Admittedly, possession of bungalow No.TBM-300-AP-540 was not delivered to the complainants, by the stipulated date, or even by the time, the complaint was filed. Even, in the written version, the Opposite Party frankly admitted that possession of bungalow No.TBM-300-AP-540, could not be offered to the complainants, for want of complete construction and basic amenities, at the site. On the other hand, part sale consideration of bungalow No.TBM-300-AP-540, to the tune of Rs.65,89,295/-, had already been paid, by the time of filing the complaint, but possession of the same, was not even offered to the complainants, what to speak of delivery thereof. By making a misleading statement, that the possession of bungalow No.TBM-300-AP-540 would to be delivered within 24 months, from the date of execution of the Buyer's Agreement dated 11.01.2010, Annexure C-7, and by not abiding by the commitments, made by the Opposite Party, it (Opposite Party) was not only deficient, in rendering service, but also indulged into unfair trade practice.
- The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.65,89,295/- deposited by them. As stated above, the Opposite Party failed to deliver legal physical possession of bungalow No.TBM-300-AP-540, allotted in favour of the complainants. Even in the written version filed by the Opposite Party, it failed to give exact date of delivery of the unit, in question. The complainants cannot wait for an indefinite period for delivery of possession of the unit, in question, and, as such are entitled to the refund of amount deposited by them, in respect of bungalow No.TBM-300-AP-540.
- Now, the question, that falls for consideration, is, as to what amount, the complainants are entitled to, in the circumstances, referred to above. It may be stated here that perusal of the statement of account dated 04.05.2015 Annexure R-1 (colly.) reveals that by 12.12.2011, an amount of Rs.65,89,295/- had been deposited by the complainants, in respect of bungalow No.TBM-300-AP-540. The authenticity of the statement of account dated 04.05.2015 Annexure R-1 (colly.) has not been disputed by the complainants. The Opposite Party, therefore, had no right, to retain the hard earned money of the complainants, in the sum of Rs.65,89,295/-, deposited by them, towards the part price of bungalow No.TBM-300-AP-540, without rendering them, any service. By not refunding the amount, deposited by the complainants, the Opposite Party was deficient, in rendering service.
- The next question, that falls for consideration, is, as to whether, the complainants are entitled to interest, on the amount of Rs.65,89,295/-, if so, at what rate. The amount of Rs.65,89,295/- towards the price of bungalow No.TBM-300-AP-540, was deposited by the complainants, in the manner, referred to above. The complainants were deprived of their hard earned money, on the basis of misleading information, given by the Opposite Party, that they would be handed over the legal physical possession of bungalow No.TBM-300-AP-540 by the stipulated date, but it failed to do so. The complainants, were, thus, caused financial loss. The hard earned money of the complainants, was utilized by the Opposite Party, for a sufficient longer period. Had this amount been deposited by the complainants, in some bank, or had they invested the same, in some business, they would have earned handsome returns thereon. In case of delay, in deposit of installment(s), the Opposite Party was charging compound interest @24% P.A., as is evident from Clause 3 of the Buyer's Agreement dated 11.01.2010, Annexure C-7. Under these circumstances, in our considered opinion, if interest @12% P.A., on the amount, deposited by the complainants, from the respective dates of deposits, is granted, that will serve the ends of justice. The complainants are, thus, entitled to the refund of Rs.65,89,295/-, with interest @12% P.A. from the respective dates of deposits.
- At the time of arguments, the Counsel for the Opposite Party, submitted that, in case, this Commission came to the conclusion that it had got pecuniary Jurisdiction to entertain and decide the complaint, and that the complainants were entitled to the refund of amount deposited by them, then the Opposite Party was ready to pay the same, in installments. The Counsel for the complainants, however, submitted that he did not agree to such submission, made by the Counsel for the Opposite Party. In our considered opinion, the submission of the Counsel for the Opposite Party, is devoid of merit. The complainants deposited the amount of Rs.65,89,295/- towards part price of the unit, in question, right from 2009 to 2011. Thus, the hard earned money to the tune of Rs.65,89,295/- was deposited by them, with the Opposite Party, with the hope that they would be given possession of the unit, in question, but their hopes were dashed to the ground. No ground, whatsoever, is made out, for directing the Opposite Party to pay the amount, deposited by the complainants, in installments. The hard earned money of the complainants, which was deposited by them, is liable to refunded by the Opposite Party, in lump-sum, as it has been held deficient, in rendering service. The submission of the Counsel for the Opposite Party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
- The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, for deficiency in rendering service, indulgence into unfair trade practice on the part of the Opposite Party and mental agony and physical harassment caused to them (complainants) at its (Opposite Party) hands. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainants. The word ‘compensation’ is again of very wide connotation. It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling the Consumer Foras, to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainants. The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, the hard earned money of the complainants was used by the Opposite Party, for a long time, without either delivering physical possession of bungalow No.TBM-300-AP-540 or refunding the same (amount). The complainants purchased the bungalow No.TBM-300-AP-540 by depositing a huge amount, with the Opposite Party, in the hope of residing therein, to have a shelter. Their hopes were, however, dashed to the ground, when the construction of bungalow No.TBM-300-AP-540 was not complete nor the question of delivery of possession thereof, in the near future arose. The complainants shall also not be able to purchase the bungalow, like the one, in question, at the same rate, at which it was allotted to them, due to escalation in prices. The complainants, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Party. In this view of the matter, the complainants, in our considered opinion, are entitled to compensation, for deficiency in rendering service, indulgence into unfair trade practice on the part of the Opposite Party and mental agony and physical harassment caused to them, at its (Opposite Party) hands, as also escalation in prices of the real estate, to the tune of Rs.2,00,000/- which could be said to be adequate and reasonable.
- The Counsel for the Opposite Party, however, submitted that since the parties are governed by the terms and conditions of the Buyer's Agreement dated 11.01.2010, Annexure C-7, in case, the complainants sought refund of the amount, deposited by them, towards bungalow No.TBM-300-AP-540 they would lose considerable amount, on account of cancellation and forfeiture, as per Clause 2 (f) of the same (Agreement). The submission of the Counsel for the Opposite Party, in this regard, does not appear to be correct. It may be stated here, that, in the instant case, the Opposite Party failed to produce, on record, any document to establish that it was in a position to deliver possession of the unit, to the complainants, by the stipulated date. Not only this, on the other hand, as stated above, it was frankly admitted by the Opposite Party, in its written version, that the possession of bungalow No.TBM-300-AP-540 could not be handed over to the complainants, for want of complete construction, and basic amenities. It is not the case of the Opposite Party, that it had offered possession of bungalow No.TBM-300-AP-540, complete in all respects, to the complainants, before filing the complaint, but they failed to take the same or rescinded the contract. Had the Opposite Party offered possession of bungalow No.TBM-300-AP-540 to the complainants, before filing the consumer complaint, and had they (complainants) refused to take the same, or rescinded the contract, the matter would have been different. Since there was no fault of the complainants, they could not be penalized by invoking the provisions of Clause 2 (f) relating to forfeiture of the stipulated amount, in the event of rescission of contract. The submission of the Counsel for the Opposite Party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
- It may be stated here, that admittedly, the complainants opted for subvention interest scheme. As such, the Opposite Party had deposited the amount of Rs.2,27,952/-, towards pre-EMI interest, in the HDFC Limited, vide cheque No.167519 dated 02.02.2010, (at page 97 of the file) on behalf of the complainants and at the same time, an amount of Rs.93,890/-, was credited in the account of the complainants, on 12.11.2011, as reflected in the said statement of account, at page 95 of the file. Since, it has been held above that the complainants are entitled to the refund of amount of Rs.65,89,295/- deposited by them, towards the said unit, as such, they are liable to refund Rs.2,27,952/- to the Opposite Party. The Opposite Party shall also be entitled to reverse the entry of amount of Rs.93,890/- credit whereof was given to the complainants, in the statement of account.
- No other point, was urged, by the Counsel for the parties.
- For the reasons recorded above, the complaint is partly accepted, with costs, and the Opposite Party is directed as under:-
- To refund the amount of Rs.65,89,295/- to the complainants, alongwith interest @ 12% per annum, from the respective dates of deposits onwards, within 3 months, from the date of receipt of a certified copy of this order, on payment of Rs.2,27,952/- by them (complainants) to the Opposite Party, as indicated above.
- To reverse the entry of Rs.93,890/- credit whereof was given in the statement of account by it (Opposite Party) as indicated above.
- To pay compensation, in the sum of Rs.2,00,000/-, for deficiency in rendering service, indulgence into unfair trade practice, causing mental agony and physical harassment to the complainants at its (Opposite Party) hands and escalation in prices, to them (complainants), within 3 months, from the date of receipt of a certified copy of this order.
- To pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.
- HDFC Limited, shall have the first charge on the amount, ordered to be refunded, in favour of the complainants, to the extent it (amount) was found due to it, against them (complainants).
- In case, the payment of amounts, mentioned in Clauses (i) and (iii), is not made, within the stipulated period, then the Opposite Party, shall be liable to pay the amount mentioned in Clause (i) with interest @15% P.A., instead of 12% P.A., from the respective dates of deposits, till realization, and interest @12% P.A., on the amount of compensation, mentioned in Clause (iii), from the date of filing the complaint, till realization, besides payment of costs, to the tune of Rs.20,000/-.
- Certified Copies of this order be sent to the parties, free of charge.
- The file be consigned to Record Room, after completion.
Pronounced.
June 26, 2015
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[DEV RAJ]
MEMBER
Sd/-
(PADMA PANDEY)
MEMBER
Rg.
